New Hampshire System Of Tossing Votes Over Bad Signatures Ruled Unconstitutional

The law allowed ordinary citizens with no expertise in handwriting analysis to decide not to count absentee ballots.
A man walks out of a voting booth holding his ballot in the 2016 presidential primary in Canterbury, New Hampshire.
A man walks out of a voting booth holding his ballot in the 2016 presidential primary in Canterbury, New Hampshire.

A federal judge struck down a provision of a New Hampshire law on Tuesday that allowed local election officials not to count an absentee ballot if they thought the signature on the ballot didn’t match the signature they had on file for the voter.

U.S. District Judge Landya McCafferty held that the provision violated the U.S. Constitution’s guarantee of due process. The provision empowered election “moderators” ― ordinary citizens with no formal training ― to throw out absentee ballots at their discretion with little oversight and no chance for voters to prove their ballot was legitimate.

“The absence of functional standards is problematic, and the likelihood of error resulting therefrom is only compounded by the lack of meaningful review or oversight,” McCafferty wrote. “In law and in practice, the ultimate determination is left to the sole discretion of the moderator and is almost entirely insulated from meaningful scrutiny.”

The decision is a victory for three New Hampshire voters and the local chapter of the American Civil Liberties Union, who sued the state over the law in 2017. Mary Saucedo, the lead plaintiff in the case, is in her mid-90s and legally blind. In 2016, her husband helped her fill out her application for an absentee ballot and then the ballot itself. Saucedo’s vote wasn’t counted because the two signatures didn’t match in the judgment of election officials.

The New Hampshire ruling comes just days after the Iowa Supreme Court upheld part of a lower court’s order that said officials couldn’t simply reject an absentee ballot on the basis that signatures were not the same. In Kansas, where they’re still counting ballots in a razor-tight GOP gubernatorial primary between Gov. Jeff Colyer and Secretary of State Kris Kobach, there is a bubbling legal dispute over whether ballots with suspected mismatched signatures should be counted.

Overall, only 275 of 78,430 absentee ballots were rejected in New Hampshire’s 2016 election because of an alleged signature mismatch. But there didn’t appear to be uniformity in how standards were applied across the state. All of the 275 rejected ballots came from a little more than a quarter of the state’s counties.

McCafferty noted in her opinion that even though the rejection rate statewide was low, hundreds of New Hampshire voters could be disenfranchised by the provision. She also pointed to a 2016 state senate race that had been decided by 17 votes.

“We’ve said all along that people should not be denied their fundamental right to vote because of penmanship. We’re glad the court agreed,” Gilles Bissonnette, legal director of the ACLU of New Hampshire, said in a statement.

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